Jahn v. Secretary of Health and Human Services ( 2022 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: November 7, 2022
Reissued for Public Availability: December 27, 2022
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STEVEN JAHN, * PUBLISHED
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Petitioner, * No. 21-1846V
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v. * Special Master Dorsey
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SECRETARY OF HEALTH * Dismissal Decision; Failure to Prosecute;
AND HUMAN SERVICES, * Insufficient Proof; Entitlement.
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Respondent. *
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Steven Jahn, pro se, Zephyrhills, FL, for Petitioner
Catherine Elizabeth Stolar, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION1
I. INTRODUCTION
On September 13, 2021, Steven Jahn (“Petitioner”) filed a pro se petition for
compensation in the National Vaccine Injury Program (“Vaccine Act” or “the Program”), 42
U.S.C. § 300aa-10 et seq. (2012).2 Petitioner alleges that he suffered transverse myelitis (“TM”)
as a result of an influenza (“flu”) vaccination on September 11, 2018. Petition at Preamble (ECF
No. 1).
1Pursuant to Vaccine Rule 18(b), this Decision was initially filed on November 7, 2022, and the
parties were afforded 14 days to propose redactions. The parties did not propose any redactions.
Accordingly, this Decision is reissued in its original form for posting on the court’s website.
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The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-10 to -34 (2012). All citations in this Decision to individual sections of the
Vaccine Act are to 42 U.S.C. § 300aa.
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Based on the reasons set forth below and in the Show Cause Order dated May 24, 2022,
and for failure to comply with the Show Cause Order, the undersigned DISMISSES this case for
failure to prosecute and insufficient proof.
Moreover, the undersigned finds that Petitioner has failed to prove by preponderant
evidence that the vaccination allegedly administered to him on September 11, 2018 caused any
injury. See Althen v. Sec’y of Health & Hum. Servs., 418 F.3d 1274, 1280 (Fed. Cir. 2005).
Thus, the undersigned finds Petitioner is not entitled to compensation.
II. BACKGROUND
A. Procedural History
On September 13, 2021, Petitioner filed a petition, alleging that he suffered TM as a
result of a flu vaccination on September 11, 2018. Petition at Preamble.
The case was assigned to the undersigned on September 14, 2021, and the undersigned
scheduled a status conference for October 21, 2021. Notice of Reassignment dated Sept. 14,
2021 (ECF No. 7); Order dated Sept. 30, 2021 (ECF No. 11). Petitioner did not appear during
the scheduled status conference and the undersigned rescheduled the conference for November 2,
2021. Order dated Oct. 26, 2021 (ECF No. 12). Petitioner again failed to appear at the
rescheduled status conference on November 2, 2021, and the undersigned issued an order
requesting Petitioner file medical records and an affidavit in accordance with the Vaccine Rules
and Guidelines. Order dated Nov. 2, 2021 (ECF No. 13).
Petitioner missed the deadline to file medical records on January 4, 2022, and on January
6, the undersigned issued an order extending Petitioner’s deadline by 60 days. Order dated Jan.
6, 2022 (ECF No. 14). The undersigned warned Petitioner that continued failure to follow
directions from the Court would result in an order to show cause and the case could be
dismissed. Id. On March 7, 2022, Petitioner again missed the deadline to file medical records as
requested by the undersigned. Order dated Mar. 23, 2022 (ECF No. 15). The undersigned
issued an order extending Petitioner’s deadline an additional 60 days, and again warned that
failure to comply with the deadline may result in an order to show cause. Id.Petitioner missed his third deadline to file medical records on May 20, 2022.
Accordingly, on May 24, the undersigned issued an Order to Show Cause, stating that Petitioner
had repeatedly failed to file medical records requested by the Court and warning that if Petitioner
did not file medical records in compliance with the Order to Show Cause, the case would be
dismissed. Order to Show Cause dated May 24, 2022, at 1-2 (ECF No. 17) (“Petitioner is
ordered to show cause why this case should not be dismissed by filing evidence that Petitioner
received the flu vaccine and suffered from TM or a similar illness.”).
Petitioner repeatedly called the undersigned’s Chambers throughout July 2022. The
undersigned’s former law clerk spoke with Petitioner on July 27, 2022 regarding the Order to
Show Cause, the medical records needed, and how to get an attorney. That same day, Petitioner
e-mailed Respondent’s counsel and the undersigned’s law clerk requesting a motion for
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extension of time. Despite the deadline from the Order to Show Cause having passed,
Respondent e-mailed he had no objection. The undersigned granted Petitioner’s motion and
extended Petitioner’s deadline to file medical records and an affidavit an additional 60 days.
Order dated July 27, 2022 (ECF No. 19). This Order again warned that failure to file medical
records by September 26, 2022 would result in a decision dismissing the case for failure to
prosecute. Id. On August 8, 2022, Petitioner called the undersigned’s Chambers regarding the
medical records and was told his motion for extension of time was already granted. On
September 26, 2022, Petitioner missed his fourth deadline to file medical records and failed to
comply with the Order to Show Cause.
This matter is now ripe for adjudication.
B. Factual History
Petitioner alleges that he received a flu vaccine on September 11, 2018, and subsequently
developed TM. Petition at 1. The petition does not contain any more factual information. To
date, no vaccination records, medical records, or records of any kind have been filed. Petitioner
has not filed an affidavit and there have been no expert reports filed by Petitioner.
III. DISCUSSION
When a petitioner fails to comply with court orders to prosecute his case, the court may
dismiss the case. Sapharas v. Sec’y of Health & Hum. Servs., 35 Fed. Cl. 503 (1996); Tsekouras
v. Sec’y of Health & Hum. Servs., 26 Cl. Ct. 439 (1992), aff’d, 991 F.2d 819 (Fed. Cir. 1993);
Vaccine Rule 21(c); see also Claude E. Atkins Enters., Inc. v. United States, 889 F.2d 1180,
1183 (Fed. Cir. 1990) (affirming dismissal of case for failure to prosecute for counsel’s failure to
submit pre-trial memorandum); Adkins v. United States, 816 F.2d 1580, 1583 (Fed. Cir. 1987)
(affirming dismissal of cases for failure of party to respond to discovery requests).
Vaccine Program cases that have been dismissed for failure to respond to an Order to
Show Cause include but are not limited to: Byrd v. Sec’y of Health & Hum. Servs., 778 F. App’x
924 (Fed. Cir. 2019); Ghasemipor v. Sec’y of Health & Hum. Servs., No. 20-17V, 2020 WL
7497878 (Fed. Cl. Spec. Mstr. Nov. 23, 2020); Flores v. Sec’y of Health & Hum. Servs., No. 20-
157V, 2020 WL 5798502 (Fed. Cl. Spec. Mstr. Sept. 2, 2020); Button ex rel. W.S.B. v. Sec’y of
Health & Hum. Servs., No. 16-1391V, 2017 WL 2876099 (Fed. Cl. Spec. Mstr. June 5, 2017);
Duncan v. Sec’y of Health & Hum. Servs., No. 16-1367V, 2020 WL 6738118 (Fed. Cl. Spec.
Mstr. Oct. 19, 2020), mot. for rev. denied, 153 Fed. Cl. 642 (2021).
Not only was Petitioner required to submit medical records with his petition pursuant to
Vaccine Rule 2(c)(2) and § 11(c), but Petitioner has also had numerous opportunities over the
course of one year, and he has failed to do so. The undersigned repeatedly warned Petitioner that
failure to file the requested medical records would result in the dismissal of the petition for
failure to prosecute. Although the Order to Show Cause permitted Petitioner one last
opportunity to show cause why this case should not be dismissed, he did not offer any evidence
that he received the flu vaccine and suffered from TM.
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Petitioner’s failure to file any medical records, failure to respond to the Order to Show
Cause, and failure to appear at two status conferences, indicates a disinterest in pursuing his
claim. Therefore, the undersigned finds it appropriate to dismiss this case for failure to
prosecute.
Additionally, to receive compensation under the Act, Petitioner must prove either (1) that
he suffered a “Table Injury”—i.e., an injury falling within the Vaccine Injury Table—
corresponding to one of his vaccinations, or (2) that he suffered an injury that was actually
caused by a vaccine. See §§ 11(c)(1), 13(a)(1)(A).
Here, there is not a single record to show that Petitioner received the flu vaccine or that
Petitioner has TM. Without evidence of vaccination or proof of injury, the undersigned finds
that the record does not support a claim under the Vaccine Act, or otherwise include
preponderant evidence demonstrating that Petitioner sustained any vaccine injury.
IV. CONCLUSION
Accordingly, this case is DISMISSED for insufficient evidence and for failure to
prosecute. In the absence of a timely filed motion for review pursuant to Vaccine Rule 23, the
Clerk of Court SHALL ENTER JUDGMENT in accordance with this Decision.
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Special Master
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